OS (JR) 897 OF 2010; Justice Mark S. Sevua, CBE v Ano Pala, MP. As Chairman And Member Of The Judicial & Legal Services Commission and Judicial & Legal Services Commission and The Independent State Of Papua New Guinea (2011) N4336

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 07 January 2011
• Court: National Court
• Citation: (2011) N4336
• Year: 2011
• Judgement Number: N4336

Full Title: OS (JR) 897 OF 2010; Justice Mark S. Sevua, Cbe v Ano Pala, MP. As Chairman And Member Of The Judicial & Legal Services Commission and Judicial & Legal Services Commission and The Independent State Of Papua New Guinea (2011) N4336

National Court: Hartshorn J.

Judgment Delivered: 7 January 2011

N4336

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 897 OF 2010

BETWEEN:

JUSTICE MARK S. SEVUA, CBE

Plaintiff

AND:

ANO PALA, MP. AS CHAIRMAN AND MEMBER OF

THE JUDICIAL & LEGAL SERVICES COMMISSION

First Defendant

AND:

JUDICIAL & LEGAL SERVICES COMMISSION

Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Waigani: Hartshorn J.

2011: 5th & 7th January

Application for Leave for Judicial Review

Facts:

The plaintiff applies for leave to judicially review the decision of the second and first defendants, the Judicial and Legal Services Commission and its Chairman made on 28th September 2010. The decision was to decline the request of the plaintiff for an extension of his retirement age from 60 to 65 years and was purportedly made pursuant to s. 7 (2) Organic Law on the Terms and Conditions of Employment of Judges.

Held:

1. If the relief sought was granted, it would serve no useful purpose.

2. There is no general duty to give reasons for administrative decisions as part of the principles of natural justice.

3. The Court is not satisfied that the material discloses what might on further consideration turn out to be an arguable case in favour of granting the plaintiff the relief that he seeks. For this reason and the further reason that even if the relief sought was granted, it would serve no useful purpose, the application should be dismissed.

Cases cited:

Papua New Guinea Cases

Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348

NCDIC v, Crusoe Pty Ltd [1993] PNGLR 139

Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22

Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488

Pora v. Leadership Tribunal [1997] PNGLR 1

John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333

Ombudsman Commission v. Peter Yama (2004) SC747

Alphonse Hayabe v. William Powi (2007) N3113

Samson David v. Manasupe Zurenouc (2007) N3146

Overseas cases

Asha Foundation, R (On the Application of) v. Millennium Commission [2003] EWCA Civ 88

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617

R v. Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310

R v. Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242

Counsel:

Mr. C. Raurela, the Plaintiff

7th January, 2011

1. HARTSHORN J: The plaintiff, the Honourable Justice Mark Sevua, CBE, applies for leave to judicially review the decision of the second and first defendants, the Judicial and Legal Services Commission (JLSC) and its Chairman made on 28th September 2010. The decision was to decline the request of Sevua J for an extension of his retirement age from 60 to 65 years (JLSC decision) and was purportedly made pursuant to s. 7 (2) Organic Law on the Terms and Conditions of Employment of Judges (Organic Law).

2. Sevua J. submits amongst others that:

a) he was not given reasons for the JLSC decision contrary to the principles of natural justice and as such there is a suspicion that the JLSC decision was made without good reason or is tainted with bias,

b) the JLSC decision is void for unreasonableness as:

i) he had a legitimate expectation that his term of appointment would be extended and,

ii) the JLSC decision is so absurd that no reasonable person would act in making the decision that the JLSC has.

3. The application proceeded ex parte pursuant to Order 16 Rule 3(2) National Court Rules after I satisfied myself that the requisite notice had been given to the Secretary for Justice pursuant to Order 16 Rule 3(3) National Court Rules. Further, as the third defendant, the State, had been served with the relevant documentation, I was satisfied that the State had been afforded an opportunity to be heard as required by s. 8 Claims By and Against the State Act. I mention at this juncture that counsel for the State did make an appearance at the hearing, but I refused to hear him further upon him conceding that he is not the holder of a current practicing certificate as required by the Lawyers Act.

4. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

5. A further matter that the courts should take into account in exercising its discretion is whether any useful purpose will be served if the relief sought is granted.

6. In Alphonse Hayabe v. William Powi (2007) N3113 I made reference to Halsbury’s Laws of England 4th Edition vol. 1(1) para. 117 where it is stated:

“Another relevant consideration in deciding whether or not to grant certiorari or prohibition is the effect of doing so. If the remedy is unnecessary or futile an order will not be made.

Thus, where grounds are made out upon which the court might grant the order, it will not do so when no benefit could arise in granting it”.

7. This principle has been referred to in decisions of this jurisdiction:

a) In Ombudsman Commission of PNG v. Denis Donohe (1985) PNGLR 348 Amet, J. (as he then was) appears to acknowledge that there should not be an exercise of the discretion to grant leave if the relief sought served no utility or no practical purpose or if the relief did not determine the immediate rights of the Plaintiff.

b) In Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488, a case not involving judicial review, one of the prerequisites for declaratory orders was stated as being that, “ The issue must not be of merely academic interest, hypothetical or one whose resolution would be of no practical effect”.

8. In this instance the relief sought in the originating summons and the statement in support are amongst others, an order in the nature of certiorari to quash the JLSC decision and an order in the nature of a declaration that the JLSC decision is invalid and/or defective in law. If this relief was granted it would have the effect of quashing the JLSC decision and the subject declaration would issue but there would not be an extension to the retirement age. For that to occur, an order in the nature of mandamus is required in respect of the JLSC. That relief has not been sought. Consequently even if the present relief sought was granted, I am of the respectful view that it would serve no useful purpose. On this issue alone the application should be refused.

9. If the application was not so refused, the next step to be taken is a consideration of the application for leave on its merits.

10. As to what is required in an application for leave, in the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 644;

“If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application”.

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22.

11. As the JLSC decision is an act done in the “deliberate judgement” of the JLSC pursuant to s. 7 (2) Organic Law, a further consideration is s. 62 Constitution which is:

“(1) Where a law provides or allows for an act to be done in the “deliberate judgement” of a person, body or authority, the principles of natural justice apply only to the extent that the exercise of judgement must not be biased, arbitrary or capricious.

(2) Except---

(a) to the extent provided for by Subsection (1); and

(b) in accordance with Section 155 (5) (the National Judicial System); and

(c) as provided by a Constitutional Law or an Act of the Parliament,

an act to which Subsection (1) applies is, to the extent to which it is done in the deliberate judgement of the person concerned, non-justiciable.”

12. In the Supreme Court case of John Mua Nilkare v. Ombudsman Commission [1999] PNGLR 333, Injia J (as he then was)...